The probate courts in Arizona handle three primary types of cases: (1) guardianship / conservatorship proceedings to protect individuals and their property when they are unable to do so themselves; (2) supervised or contested proceedings involving trusts, and (3) probate proceedings to administer the estate of a deceased person. This article will summarize what a person should expect from a lawyer who is going to advise individuals with regard to item #3 above in the administration of the estate of a deceased person.
A probate lawyer in Arizona can represent a person in either a fiduciary capacity or in a beneficial capacity, or as a claimant against an estate.
1 – Fiduciary capacity.
The fiduciary capacity in the administration of a deceased person’s estate is called the personal representative (a.k.a. executor). The Arizona probate lawyer advises the personal representative with regard to his or her fiduciary duties of loyalty, care, and impartiality. In layman’s terms, this means that the probate lawyer must advise the personal representative so that (1) the personal representative does not take positions that are in conflict with or adverse to the estate, (2) the personal representative fulfills his or her duties properly and timely, and (3) the personal representative does not treat the beneficiaries unfairly.
For an Arizona probate lawyer with any significant probate experience, the proceeding to administer the estate of a deceased person is a relatively routine matter. The Arizona probate lawyer protects the personal representative from liability with regard to three potential claimants: (1) taxing authorities, (2) creditors, and (3) heirs or beneficiaries.
First, most have heard the axiom that the only sure things in life are death and taxes. However, taxes continue even after a person has passed away. The Arizona probate lawyer identifies whether there will be an “estate tax” assessed on the property that the deceased person is passing on to his or her loved ones, as well as advising the client of the ongoing responsibility to file fiduciary income tax returns.
2 – Beneficial capacity.
Beneficiaries should consult with legal counsel before making a decision whether to engage a lawyer to protect their beneficial rights. In an ideal world, everyone would do the right thing every time — until then, beneficiaries in most cases should engage counsel to make sure they are protected. The Arizona probate lawyer representing beneficiaries will advise their clients to ensure that the assets of the estate are adequately protected, i.e. a bond (i.e. fraud insurance) or asset restrictions may be appropriate. Beneficiaries have rights to hold fiduciaries accountable. The Arizona probate lawyer will explain when an accounting is required and will be able to advise the client whether a forensic accountant may be necessary.
3 – Claimant against an estate.
A probate lawyer can represent someone to bring a claim against an estate. Common types of claims against an estate often include creditors of the deceased person (i.e. credit card bills, medical expenses, utilities, service providers, etc.), taxing authorities, as well as surviving children or a surviving spouse. If the deceased person was negligent or otherwise responsible for the death or injuries of others (for example, in a multi-car accident), the estate could have to defend against claims of negligence or wrongful death. The Arizona probate lawyer who represents a creditor of an estate will advise the clients with regard to (1) the merits of their case, and (2) the procedures to make sure that their claims are brought timely. In Arizona, these time limitations are very quick, so it is advisable for the claimant to obtain legal counsel as soon as reasonably possible to prevent claims from expiring.
 In general, the difference between an heir and a beneficiary is that a beneficiary is designated to receive a bequest in the deceased person’s last will and testament, and an heir is designated to inherit property under the terms of state law when no beneficiaries are named.